Citation Nr: 9919494
Decision Date: 07/16/99 Archive Date: 07/21/99
DOCKET NO. 92-03 217 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to an increased evaluation for service-connected
anxiety reaction, currently evaluated as 50 percent
disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
M. A. Herman, Associate Counsel
INTRODUCTION
The veteran had active military service from June 1951 to
March 1954. This appeal arises from a February 1991 rating
decision of the Providence, Rhode Island, regional office
(RO) which denied an increased evaluation for the veteran's
service-connected anxiety reaction, rated as 30 percent
disabling. By a rating action dated in January 1999, the 30
percent disability evaluation was increased to 50 percent,
effective October 31, 1990.
This matter was Remanded by the Board of Veterans' Appeals
(Board) in August 1992 and March 1997 for the purpose of
obtaining additional medical evidence and affording due
process to the veteran. The matter has been returned to the
Board for appellate review.
REMAND
The veteran argues that the symptoms of his psychiatric
condition adversely impact his ability to work and maintain
effective relationships with his employer and co-workers. He
says he has been unable to hold a job for more than a year
since his discharge. The veteran maintains that the total
number of years he has worked post-service has been about 10
years. He also asserts that his service-connected
psychiatric condition causes insomnia and homicidal feelings.
As part of its March 1997 Remand, the Board requested that
the veteran be afforded a VA psychiatric examination.
Specific questions were asked in connection therewith. The
examiner was asked to discuss the effect the veteran's
service-connected disability had on his social and industrial
adaptability. In that regard, the examiner was also
requested to provide a Global Assessment of Functioning (GAF)
Scale score and define what the score represented in
accordance with the appropriate edition of the American
Psychiatric Association's Diagnostic and Statistical Manual
for Mental Disorders. The psychiatric examination afforded
to the veteran in November 1998 failed to clearly address
these questions.
Specifically, the examiner failed to comment on how the
veteran's service-connected disability impacted on his
ability to work. Further, the examiner indicated that the
veteran maintained his composure during the course of the
examination and displayed a warm affect. His speech was
observed to be clear and coherent. The examiner also
reported that the veteran's judgment was not impaired, and
that he was oriented to time, place, and person. However,
despite these seemingly positive findings, the veteran was
assigned a GAF of 40. A GAF of 20 is indicative of "severe
impairment." See American Psychiatric Association: Quick
Reference to the Diagnostic Criteria from Diagnostic and
Statistical Manual of Mental Disorders, Fourth Edition.
Washington, DC, American Psychiatric Association, 1994.
The U.S. Court of Appeals for Veterans Claims (Court) has
stated that an examination must provide sufficient
information to rate the disability in accordance with the
applicable rating criteria. See Massey v. Brown, 7 Vet.
App. 204 (1994). In light of the discrepancy between the
findings on the November 1998 examination and the GAF score
assigned, the Board finds that another VA psychiatric
examination should be provided to the veteran.
The Board also observes that it previously determined that
the veteran had filed a claim of unemployability due to his
service-connected psychiatric disability, that said claim was
"inextricably intertwined" with the issue on appeal, and
that the unemployability claim had to be adjudicated prior to
a final determination with respect to the pending claim. See
Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, as
part of its August 1992 Remand, the Board asked the RO to
develop this issue. The RO received similar instructions
from the Board in its March 1997 Remand. To date, there is
no evidence that the RO has attempted to adjudicate the issue
of the veteran's entitlement to a total disability rating
based on individual unemployability.
In a recently issued decision, the Court held that a remand
by the Board confers on the appellant, as a matter of law,
the right to compliance with the remand orders, and imposes
upon the Secretary of Veterans Affairs a concomitant duty to
ensure compliance with the terms of the remand. Furthermore,
the Court held that where "the remand orders of the Board .
. . are not complied with, the Board itself errs in failing
to insure compliance." Stegall v. West, 11 Vet. App. 268
(1998). Once again, the issue of the veteran's entitlement
to a total disability evaluation based upon individual
unemployability is referred to the RO for proper
adjudication.
Finally, the VA has a duty to assist a claimant in the
development of facts pertinent to his claim. 38 U.S.C.A.
§ 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1998). The duty
to assist the veteran in obtaining and developing available
facts and evidence to support his claim includes the
procurement of medical records to which the veteran has made
reference. Littke v. Derwinski 1 Vet. App. 90 (1990). As
this matter is being returned for another psychiatric
examination, the RO should obtain the veteran's current
medical records pertaining to the treatment of his service-
connected psychiatric disorder.
Although further delay is regrettable, under the
circumstances described above, additional development is
considered necessary. Therefore, this case is Remanded to
the RO for the following development:
1. The RO should inform the veteran that
it will consider the issue of entitlement
to a total disability evaluation based
upon individual unemployability. He
should be provided the opportunity to
furnish additional evidence or argument
on this issue. In the event the claim is
denied, the veteran should be provided
proper notice thereof, with his appellate
rights.
2. The RO should obtain from the veteran
the names and addresses of all medical
care providers who treated him for his
service-connected psychiatric condition
since 1990. After securing the necessary
release(s), the RO should obtain those
records.
3. After the above has been
accomplished, the RO should schedule the
veteran for a VA psychiatric examination
to determine the severity of his service-
connected anxiety reaction. The veteran
and his representative should be notified
of the date, time, and place of the
examination in writing, and the RO should
advise the veteran that, pursuant to
federal regulations, failure to report
for the examination, without good cause
shown, may result in the denial of his
claim for an increased rating. A copy of
the notification letter should be
associated with the claims file. In
conjunction with the examination, the
examiner must review the claims folder,
the revised criteria for rating
psychiatric disabilities which came into
effect November 7, 1996, and the criteria
in effect prior to November 7, 1996.
Such tests as the examiner deems
necessary should be performed.
The examiner should provide the
answers/findings indicated below to each
question or instruction posed. No
instruction/question should be left
unanswered. If the examiner finds that
it is not feasible to answer a particular
question or follow a particular
instruction, he or she should so indicate
and provide an explanation.
a) The examiner must address the
mental status findings as set forth
in both rating schedules as the
Board must rate disabilities based
on the criteria set forth in those
regulations.
b) The examiner should be asked to
enter a complete multiaxial
evaluation, including a score on the
GAF Scale on Axis V, along with an
explanation of the significance of
the assigned score.
c) The examiner should state an
opinion as to the degree of
industrial inadaptability due to the
veteran's service-connected
disability. If employment is not
feasible due solely to the service-
connected disability, the examiner
should so state.
d) The examiner should discuss
social impairment, as it affects
industrial adaptability.
4. Following completion of the
foregoing, the RO must review the claims
folder and ensure that all of the
foregoing development actions have been
conducted and completed in full. If any
development is incomplete, including if
the requested examination does not
include all test reports, special studies
or opinions requested, appropriate
corrective action is to be implemented.
5. When the above development has been
completed, the veteran's claim should be
reviewed by the RO. The RO should
consider application of 38 C.F.R. § 3.655
if the veteran fails to report for his
examination. If the decision remains
adverse to the veteran, he and his
representative should be issued a
supplemental statement of the case and
afforded a reasonable opportunity to
respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
action until otherwise notified, but he may furnish
additional evidence and argument while the case is in remand
status. Quarles v. Derwinski,
3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109
(1995). The purpose of this REMAND is to obtain additional
medical information and afford due process. The Board
intimates no opinion, either factual or legal, as to the
ultimate conclusion warranted in this case.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991& Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998)